DO NOT CITE.  SEE RAP 10.4(h).
 
                          Court of Appeals Division III
                               State of Washington
 
                            Opinion Information Sheet
 
Docket Number:       22718-9-III
Title of Case:       Kithrena M. Schliep, et al v. Providence
                     Yakima Medical Center, et al
File Date:           11/15/2005
 
 
                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Yakima County
Docket No:      01-2-03386-6
Judgment or order under review
Date filed:     01/09/2004
Judge signing:  Hon. Heather K Van Nuys
 
 
                                     JUDGES
                                     ------
Authored by Dennis J. Sweeney
Concurring: John A. Schultheis
            Stephen M Brown
 
 
                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            James Edyrn Baker
            Attorney at Law
            451 Diamond Dr
            Ephrata, WA  98823-2619
 
            William Dalson Pickett
            Law Office of William D Pickett
            917 Triple Crown Way Ste 200
            Yakima, WA  98908-2426
 
Counsel for Respondent(s)
            Justin Dolan
            Garvey Schubert Barer
            Second & Seneca Bldg
            1191 2nd Ave 18th Fl
            Seattle, WA  98101-3438
 
            Roger L. Hillman
            Attorney at Law
            1191 2nd Ave Ste 1800
            Seattle, WA  98101-2996
 
            Dennis Lee Fluegge
            Attorney at Law
            230 S 2nd St
            PO Box 22680
            Yakima, WA  98907-2680
 
            Mary H. Spillane
            William Kastner & Gibbs
            Two Union Square
            601 Union St Ste 4100
            Seattle, WA  98101-2380
 
            Margaret A. Sundberg
            Williams Kastner & Gibbs PLLC
            PO Box 21926
            Seattle, WA  98111-3926
 
 
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
 
KITHRENA M. SCHLIEP and JERRY                    ) No. 22718-9-III
D. SCHLIEP,                                      )
                                                 )
          v.                                     )
                                                 )
          Appellants,                            )
                                                 )
PROVIDENCE YAKIMA MEDICAL                        ) Division Three
CENTER; EARL CHRISTISON,                         ) Panel Three
                                                 )
          Defendants,                            )
                                                 )
BONNIE KULTGEN, ARNP; JASPAL                     )
SIDHU, M.D.; MATTHEW E.                          )
SEAMAN, M.D.; and YAKIMA                         )
EMERGENCY PHYSICIANS, INC.,                      )
                                                 )
          Respondents.                           ) UNPUBLISHED OPINION
                                                 )
 
     SWEENEY, A.C.J. -- The plaintiffs here appeal from an adverse jury
verdict in their medical malpractice suit.  They assign error to a number
of the judge's rulings and her failure to instruct.  But we conclude that
all of these rulings easily fall within the judge's discretion.  And we
therefore affirm the judgment entered following the jury's verdict.
FACTS
Kithrena and Jerry Schliep sued Bonnie Kultgen, ARNP;1 Dr. Jaspal Sidhu;
Dr. Matthew E. Seaman; and Yakima Emergency Physicians, Inc., for medical
negligence.  The Schlieps claim they failed to timely diagnose a condition
called papilledema and a condition called pseudotumor cerebri.  A jury
returned a verdict in favor of the defendants.
DISCUSSION
No Guarantee/Poor Result
     The court here gave the jury two preliminary 'no guarantee/poor
result' instructions.  The instructions were read separately -- one for a
physician and one for a registered nurse practitioner.  And it read the
instructions before any evidence was introduced.  The court also gave the
jury two separate standard of care instructions for physicians and nurse
practitioners.
     The Schlieps argue that this was error for several reasons.  First,
the preliminary instructions were not necessary to provide the jury with a
context for the case.  The instructions instead 'permit{ted} the jury to
start forming opinions and applying law to the facts throughout the case.'
Appellant's Br. at 13.  Next, the court repeated the 'no guarantee/poor
result' instructions several times.  The instruction was given twice (one
for a doctor and one for a nurse) before any evidence was presented.  The
instructions were then combined and read at the end of the case.  And this,
they argue, placed undue emphasis on the instructions.  The Schlieps
further argue that the instructions became a comment on the evidence.
     So long as jury instructions correctly state the law, we will defer to
the trial judge on such things as the specific wording, the order in which
the instructions are given, and when the instructions are read.  State v.
Harris, 97 Wn. App. 865, 870, 989 P.2d 553 (1999).
     A trial court may provide preliminary jury instructions that explain
each of the parties' claims and defenses.  6 Washington Pattern Jury
Instructions:  Civil 1.01.03 (5th ed. 2005) (WPI).  They provide the jury
with some context to interpret the evidence.2  WPI 1.01.03 note on use.
     And the court may include a 'no guarantee/poor result' instruction in
a medical negligence case.  Christensen v. Munsen, 123 Wn.2d 234, 248, 867
P.2d 626 (1994); Watson v. Hockett, 107 Wn.2d 158, 164, 727 P.2d
669 (1986).  ''{N}o guarantee' and '{poor} result' instructions state well
nigh universally recognized principles of medical malpractice law.'
Hockett, 107 Wn.2d at 163.  The instruction must, however, supplement a
proper standard of care instruction.  Munsen, 123 Wn.2d at 248.  That was
done here, and so the 'no guarantee/poor result' instructions were
permissible.  They supplemented the standard of care instructions.  Id.;
WPI 1.01.03.
     A court must not repeat and overlap an instruction so that it favors
one party over another.  Samuelson v. Freeman, 75 Wn.2d 894, 897, 454 P.2d
406 (1969).  But the repetition must be extreme.  Adcox v. Children's
Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 38, 864 P.2d 921 (1993);
Freeman, 75 Wn.2d at 897.  We do not find that here.  The court read the
instruction once for a physician and once for a registered nurse
practitioner in the preliminary instructions.  Clerk's Papers (CP) at 207-
08.  A combined instruction was then given only once at the end of the
trial.  CP at 34.  This is not the extreme repetition condemned in Freeman
or Adcox.  Freeman, 75 Wn.2d at 897; Adcox, 123 Wn.2d at 38.
     And, of course, the judge may not instruct a jury in a way that
conveys his own impressions of a witness's testimony or his opinions on the
merits of the case.  Harris v. Groth, 31 Wn. App. 876, 881, 645 P.2d 1104
(1982), aff'd, 99 Wn.2d 438, 663 P.2d 113 (1983); Hamilton v. Dep't of
Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988).  Correct
instructions are by definition not a comment on the evidence.  Adcox, 123
Wn.2d at 38; Hamilton, 111 Wn.2d at 571.
     These instructions were correct.  The instructions did not then convey
the judge's beliefs and were not a comment on the evidence.  Adcox, 123
Wn.2d at 38; Hamilton, 111 Wn.2d at 571.
     The trial court did not, then, abuse its discretion in its reading of
these instructions.  Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194
(1996).
Limitation on the Use of Medical Records to Impeach
The Schlieps wanted to impeach Dr. Seaman's testimony with medical records
from three of his patients.  Exs. 33, 34, 35; CP at 535.  Two of Dr.
Seaman's patients signed consent forms to allow the use of their medical
records.  The Schlieps presented an original signed consent for the first
patient and a faxed copy of a consent for the second patient.  The Schlieps
then sought to admit the third patient's medical records by redacting the
patient's name and social security number.  CP at 538; Ex. 33.
Dr. Seaman objected.  CP at 534, 536-38.  The court sustained the objection
based on the physician-patient privilege.  It allowed the Schlieps to make
an offer of proof outside the presence of the jury.  The court then
reconsidered its ruling and allowed the Schlieps to admit one of the three
records:
The court is reconsidering.  The court will allow them on one of the three,
that is with respect to a Guadalupe Avila. . . . It is the only one of the
three which we do have an original available to the court with respect to a
release.
 
CP at 548.
     A patient's consent is required to discuss his or her medical records.
RCW 5.60.060(4).  The Schlieps presented only one original signed consent.
CP at 547.
     The Schlieps argue nonetheless that the trial court abused its
discretion when it admitted only one of the records.  They argue that Dr.
Seaman would not have been able to explain away the differences in his
charting practices if all three records had been admitted.  Dr. Seaman
testified that he performed a funduscopic examination of Ms. Schliep's eyes
on two separate occasions.  '{He} testified he documented his funduscopic
exam, by charting 'cranial nerves two through twelve are intact.''
Appellant's Br. at 17 (quoting CP at 532).  It was his practice to document
the examination in this manner unless he noticed an abnormality in the
optic disk.  These records suggested that was not his practice.  All three
medical records showed that Dr. Seaman did not chart 'cranial nerves two
through twelve are intact' even though the patients' funduscopic exams were
negative for papilledema.  He instead described the optic disks.
     Again, the standard of review we apply to this challenge to the
admissibility of evidence for impeachment purposes is abuse of discretion.
Thomas v. Wilfac, Inc., 65 Wn. App. 255, 264, 828 P.2d 597 (1992); Roper v.
Mabry, 15 Wn. App. 819, 822, 551 P.2d 1381 (1976).  Abuse of discretion
requires a showing of an unreasonable decision or a decision based on
untenable grounds.  Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684
P.2d 692 (1984).
Communications between a physician and a patient are privileged.  RCW
5.60.060(4).  'The privilege applies to all information acquired by the
physician for the purpose of enabling him to treat the patient, including
that which he learns from observation as well as through communication with
him.'  Randa v. Bear, 50 Wn.2d 415, 420-21, 312 P.2d 640 (1957) (emphasis
added).  The privilege extends to a patient's medical records.  See id. at
421.  A patient must provide his or her consent before a physician may be
examined in a civil proceeding as to the privileged information.  RCW
5.60.060(4).
An original writing must be presented to prove its contents.  ER 1002.  A
duplicate is not admissible if the authenticity of the original is
challenged or if 'it would be unfair to admit the duplicate in lieu of the
original.'  ER 1003.  Here, we have only one original.
     The court was well within the authority of RCW 5.60.060(4) when it
excluded one of the records for lack of consent and when it excluded the
second under ER 1003 because it was a duplicate.  Moreover, the evidence
here was cumulative, in any event.  Havens v. C&D Plastics, Inc., 124 Wn.2d
158, 169-70, 876 P.2d 435 (1994).  Evidence is cumulative if it is the same
in substance as other evidence that is admitted; it need not be identical.
Id. at 170.  The records here were all offered for the same purpose -- to
impeach Dr. Seaman's testimony about his charting practices.  Dr. Seaman
testified that it was his practice to chart funduscopic exams as 'cranial
nerves two through twelve are intact' if negative for papilledema.  CP at
532.  He only described the optic disks in positive exams.  This is
cumulative evidence.  Havens, 124 Wn.2d at 170.  The exclusion of two of
them was within the discretion of the trial judge.  Id. at 169-70.
     And there is a third justification for the judge's decision.  All
three of the medical records related to trauma patients.  Exs. 33-35.  Two
of the patients were involved in vehicle accidents.  Exs. 34-35.  The third
suffered an injury from a blow to the head.  Ex. 33.  The injury here did
not result from trauma.  The case was then factually distinct.
Trial Court's Refusal to Admit Evidence of an Expert's Prior
Disqualification
 
     The Schlieps argue that the trial court denied them the right to fully
cross-examine and impeach Dr. Alfred Sadun (expert witness for the
defense).  They urge evidence of Dr. Sadun's prior disqualification in
federal court would have allowed them to show his scientific opinions were
unreliable.  But the federal case dealt with a different condition --
Anterior Ischemic Optic Neuropathy (AION).  And the federal court excluded
Dr. Sadun's scientific opinion on causation citing Federal Rule of Evidence
702, which reflects considerations relevant to Daubert v. Merrell Dow
Pharmaceuticals, Inc.:3
     Although Dr. Sadun explained that no testing is possible, this is the
only reported case of oxymetazoline causing AION in almost 30 years of use.
No medical articles discuss this type of causation hypothesized in this
case, and acceptance of that hypothesis is presented to the court in the
first instance.
 
Ex. 27, at 6 n.4.
     Here, the Schlieps did not challenge the scientific foundation for Dr.
Sadun's opinion as unreliable.  And the medical condition at issue is
different.  The medical condition here is pseudotumor cerebri.
     The trial court denied the Schlieps' offer to introduce the prior
disqualification as a waste of time: 'As I indicated at sidebar, even if
it's relevant, I have some doubt, even if it's relevant, under the
necessary weighing the court must do of prejudicial effect and probative
value.  The court is persuaded it should be excluded as a waste of time.'
CP at 685-86.
     Evidence must be relevant to be admitted at trial.  ER 402.  Evidence
is relevant if it has 'any tendency to make the existence of any fact that
is of consequence . . . more probable or less probable than it would be
without the evidence.'  ER 401.  Relevant evidence may, however, be
excluded 'if its probative value is substantially outweighed by . . .
considerations of . . . waste of time.'  ER 403.
     The Schlieps did not challenge the scientific foundation for Dr.
Sadun's testimony and the medical condition at issue in this case is
unrelated to that in the federal case.  There is then no abuse of
discretion.  Davis, 102 Wn.2d at 77.
Nurse Kultgen's Negligence as a Matter of Law
     We review the sufficiency of the evidence in a light most favorable to
the prevailing party.  Vasquez v. Dep't of Labor & Indus., 44 Wn. App. 379,
384-85, 722 P.2d 854 (1986).
'The credibility of witnesses and the weight to be given to the evidence
are matters within the province of the jury and even if convinced that a
wrong verdict has been rendered, the reviewing court will not substitute
its judgment for that of the jury, so long as there was evidence which, if
believed, would support the verdict rendered.'
 
Burnside v. Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1994)
(quoting State v. O'Connell, 83 Wn.2d 797, 839, 523 P.2d 872 (1974)).
     The Schlieps argue that Nurse Kultgen breached her standard of care
because she failed to take an adequate patient history.  They argue that
both Nurse Kultgen and her expert, Nurse Nancy Schuman, changed their
testimony at trial, contradicting earlier deposition testimony.  And
therefore the testimony of both should be thrown out.  And without their
testimony there is no evidence to support the jury verdict.
     Nurse Kultgen testified she knew about Ms. Schliep's recent visits to
the emergency room (ER) when she saw her on January 2, 2001.  These visits
were in addition to visits in November.  Nurse Kultgen could tell Ms.
Schliep had been to the ER recently based upon the medication she was
taking.  Nurse Kultgen just did not know the exact dates of the visits.
Nurse Schuman testified Nurse Kultgen was not required, under the standard
of care, to know about the December 31 and January 1 visits to the ER.
     The Schlieps introduced arguably inconsistent deposition statements
taken from both witnesses.
     But the jury heard all of this and therefore had the opportunity to
pass on their credibility.  We are not in the business of tossing evidence
here on appeal even if we find it incredible; that is the jury's function.
Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003); Burnside, 123
Wn.2d at 108.
Instructions on 'Letter to the Editor'
     The Schlieps assign error to the trial court's failure to instruct the
jury not to read a particular 'letter to the editor' in the daily
newspaper.  The letter discussed tort reform.  It did not address this case
or the parties in this case.  Report of Proceedings (RP) (Dec. 17, 2003) at
2-3; Ex. 36.  A judge's decision to caution a jury or her refusal to
instruct is a matter vested in the discretion of the judge trying the case.
State v. Edwards, 84 Wn. App. 5, 14, 924 P.2d 397 (1996).  The Schlieps did
not show that the jurors actually read the 'letter to the editor' or that
the letter altered the verdict.  RP (Dec. 17, 2003) at 2-3.
     That aside, this publication cannot be described as massive.  See
State v. Trickel, 16 Wn. App. 18, 29-30, 553 P.2d 139 (1976).  It was not
an article published in a prominent section of the paper.  See id.  It was
a 'letter to the editor.'  It did not mention this case or the parties.
See State v. Hicks, 41 Wn. App. 303, 312, 704 P.2d 1206 (1985); Trickel, 16
Wn. App. at 29-30.  The trial judge apparently did not see the prejudice
and neither do we.  See Hicks, 41 Wn. App. at 312; Trickel, 16 Wn. App. at
29-30.
     The trial court's refusal to instruct the jury was not an abuse of
discretion.  See Hicks, 41 Wn. App. at 313.  The judge here gave the
standard instruction to decide the case based upon the evidence presented
at trial.  We presume the jury followed that instruction.  DeYoung v. Cenex
Ltd., 100 Wn. App. 885, 898, 1 P.3d 587 (2000).
Defense Counsel's Closing
     The Schlieps argue Nurse Kultgen's defense counsel 'slandered' Dr.
Paul Blaylock (the Schlieps' expert witness) during closing arguments.
Appellant's Br. at 38.  The Schlieps challenge the following comments as
being improper:
     Every doctor with the exception of Dr. Blaylock has said that you
don't do a lumbar puncture without an imaging study, whether it's a CT
{computerized tomography} or an MRI {magnetic resonance imaging}.  And then
they have all agreed that an MRI is more sophisticated than a CT and will
pick up things that aren't picked up.  You don't do it without examining
first with an MRI because it may not be pseudotumor cerebri.  It could be a
brain tumor.  It could be a hemorrhage.  It could be an aneurysm.
     If you do a lumbar tap on a person who's any of those, you could kill
them.  Dr. Blaylock apparently considers killing the patient an acceptable
risk.
     Dr. Blaylock has a cavalier attitude about patients.  I think if he
were asked and had he been asked is the essence of patient care caring for
your patients, someone who describes their patients as fat, female and
fertile isn't caring about their patients.  Someone who describes a
prospective treatment as 'let's tap her' doesn't care about his patients.
Someone who thinks that death is an acceptable risk because it's not his,
it's the patient's, is not caring for his patient.
 
Appellant's Br. at 39 (quoting CP at 432-33) (emphasis added).
     The question before us is whether these comments were 'so flagrant and
ill intentioned' to require a new trial.  City of Bellevue v. Kravik, 69
Wn. App. 735, 743, 850 P.2d 559 (1993).
     Dr. Blaylock made several references in the record that refer to
pseudotumor cerebri patients as generally 'fat, female, {and} fertile.'  RP
(Dec. 4, 2003) at 20, 28, 71; CP at 825.  He stated that these were three
of the criteria for pseudotumor cerebri.  RP (Dec. 4, 2003) at 23, 71.  He
also stated that a lumbar puncture could be performed with minimal risk
without first doing an imaging study (CT scan).  Others disagreed.  He said
the risk, although minimal, is death.  He acknowledged that he had done the
procedure without an imaging study.
     The comments challenged here may or may not be supported by inferences
from this record.  See State v. Swan, 114 Wn.2d 613, 662-63, 790 P.2d 610
(1990).  Again that is a question for the jury.  State v. Walton, 64 Wn.
App. 410, 415-16, 824 P.2d 533 (1992).  But even if they are not supported
they are not 'so flagrant and ill intentioned' as to require a new trial.
Kravik, 69 Wn. App. at 743.  The comments do not introduce new evidence.
They were not directed at the Schlieps.  They were directed at a trial
expert in the case.
Limitation of Closing Arguments
     The Schlieps contend that the court erred when it limited the time for
their closing arguments.  They rely on a decision in a capital murder case
to support their argument.  State v. Mayo, 42 Wash. 540, 548-49, 85 P.
251 (1906).  This case is distinguishable.  Id.  An individual accused of a
crime has a constitutional right to defend in person and by counsel, which
includes the right to fully address the jury.  Id.
     The trial court here limited the Schlieps' time for closing arguments
to two hours.  Each defendant was limited to one hour.  The Schlieps
challenged the court's ruling and requested three hours for closing
arguments.  The court denied the Schlieps request: 'I understand much of
the evidence relates to all of the defendants.  On further consideration, I
am convinced two hours is fair for the allocation of time.'  CP at 419.
     We review these limitations on closing arguments for abuse of
discretion.  City of Seattle v. Erickson, 55 Wash. 675, 677, 104 P.
1128 (1909).  We will not interfere unless the trial court's decision was
both manifestly unreasonable and prejudicial.  Id.  The trial judge listens
to the evidence and is then in the best position to limit closing
arguments.  Id.
     This is no abuse of discretion.  Id.  All important evidence and law
was addressed.  See State v. Cecotti, 31 Wn. App. 179, 183, 639 P.2d
243 (1982).  Many of the claims were the same as to each defendant.  See
State v. Jack, 63 Wn.2d 632, 639, 388 P.2d 566 (1964).
     We affirm the judgment.
     A majority of the panel has determined that this opinion will not be
printed in the Washington Appellate Reports but it will be filed for public
record pursuant to RCW 2.06.040.
 
                              Sweeney, A.C.J.
WE CONCUR:
 
Schultheis, J.
 
Brown, J.
 
1 Advanced Registered Nurse Practitioner.
2 ''{P}re-instructing' jurors as to the applicable legal principles
increases their ability to focus on and remember the relevant evidence and
improves their adherence to the judge's instructions.'  WPI 1.01.03 cmt.
3 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993).